Transformation (law) - Basis

Basis

Like most of the modern fair use doctrine, the doctrine of transformation was heavily influenced by the 1841 circuit court case Folsom v. Marsh. In that case, Justice Story ruled that

if thus cites the most important parts of the work, with a view, not to criticize, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy.

The standard of "supersed the use of the original work" would be widely cited as a standard for the degree to which a work was transformative when fair use had become more clearly fixed as a legal principle.

In the Copyright Act of 1976, Congress defined fair use explicitly for the first time, giving as one factor "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes". This factor was later determined to hinge in substantial part on transformation. See, e.g., Campbell v. Acuff-Rose Music, a case in the United States Supreme Court:

Under the first of the four 107 factors, "the purpose and Page II character of the use, including whether such use is of a commercial nature . . .," the inquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is controversially "transformative," altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.

Campbell is important in large part because of this statement, ordering that commerciality should be given less weight in fair-use determinations and transformation great weight.